MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2009 ME 126 Docket: Wal-09-116 Argued: September 17, 2009 Decided: December 17, 2009 Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,

JJ. Majority: LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ. Concurrence/ Dissenting: SAUFLEY, C.J., and ALEXANDER, J. Concurrence/ Dissenting: SAUFLEY, C.J.

VERA E. DYER et al.

v.

MAINE DRILLING & BLASTING, INC.

SILVER, J.

[¶1] Vera E., Paul, and Robert Dyer appeal from a summary judgment

entered in the Superior Court (Waldo County, Hjelm, J.) in favor of Maine Drilling

& Blasting, Inc. (Maine Drilling). The Dyers argue that: (1) we should follow the

weight of authority and adopt a common law rule of strict liability for abnormally

dangerous activities; (2) the trial court erred in concluding that the Dyers failed to

generate a genuine issue of material fact regarding a causal relationship between

Maine Drilling’s blasting activities and damage to their property; and (3) the

doctrine of res ipsa loquitur should be available to establish their negligence

claims. Because we adopt the Second Restatement’s imposition of strict liability

2

for abnormally dangerous activities, see Restatement (Second) of Torts §§ 519-520

(1977), and because there remain factual disputes on the issue of causation, we

vacate the court’s grant of a summary judgment and remand for further

proceedings.

I. CASE HISTORY

[¶2] Viewed in the light most favorable to the non-moving party, see

Jorgensen v. Department of Transportation, 2009 ME 42, ¶ 2, 969 A.2d 912, 914,

the summary judgment record supports the following facts.

[¶3] Vera Dyer and her sons, Paul and Robert, have a home in Prospect that

the family has owned since the 1950s. The home, believed to be over seventy

years old, has a cement foundation and floor. A stand-alone garage with a cement

floor was constructed in the 1980s.

[¶4] On September 22, 2004, Maine Drilling distributed a form notice that

informed the Dyers that Maine Drilling would begin blasting rock near the home

on or about October 1, 2004, in connection with a construction project to replace

the Waldo-Hancock Bridge and bridge access roads.1 The notice stated that Maine

Drilling uses “the most advanced technologies available . . . to measure the seismic

effect to the area,” and assured the Dyers “that ground vibrations associated with

1 The history of this construction project and its relation to the Dyers is stated in some detail in Dyer

v. Department of Transportation, 2008 ME 106, ¶¶ 2-12, 951 A.2d 821, 823-25.

3

the blasting [would] not exceed the established limits that could potentially cause

damage.”

[¶5] As offered in the notice, Maine Drilling provided a pre-blast survey of

the Dyer home. The survey report recorded the surveyor’s observation of “some

concrete deterioration to [the] west wall” and “cracking to [the] concrete floor,”

and a slight tilt to a retaining wall behind the garage. Richard Dyer, another son of

Vera, thoroughly documented the condition of the home and garage by videotape

before blasting began.

[¶6] Maine Drilling conducted over 100 blasts between October 2004 and

early August 2005. The closest blast was approximately 100 feet from the Dyer

home. Vera was inside the home for at least two of the blasts and felt the whole

house shake. During other blasts, she was not in the home because Maine Drilling

employees advised her to go outside. Vera visited Florida from approximately

January through April 2005, and so was absent from her home when blasting

occurred during that period. Paul, however, checked on the home several times a

week while Vera was in Florida.

[¶7] In the early spring of 2005, after the blasting work had begun and while

Vera remained in Florida, both Paul and Richard observed several changes from

the pre-blasting condition of the home and the garage: (1) the center of the

basement floor had dropped as much as three inches; (2) the center beam in the

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basement that supported part of the first floor was sagging, and as a result the first

floor itself was noticeably unlevel; (3) there was a new crack between the

basement floor and the cement pad that formed the foundation of the chimney in

the basement; (4) new or enlarged cracks radiated out across the basement floor

from the chimney foundation; and (5) cracks that had previously existed in the

garage floor were noticeably wider and more extensive. The brothers also noticed

that a flowerbed retaining wall that helped to support the rear wall of the garage

had “moved demonstrably.”

[¶8] When she returned to Maine, Vera observed the same changes in the

condition of the property as her sons had reported and also noted larger or new

cracks or separations on the back wall of the home’s foundation.

[¶9] The Dyers engaged an expert in ground engineering and environmental

services, Mark Peterson, who testified at a deposition that the U.S. Bureau of

Mines has established a “safe operating envelope” for seismic impact of blasts to

minimize property damage. Under these guidelines, a blast is considered unlikely

to cosmetically damage fragile structures in a building if its velocity falls below the

established envelope. Where, however, a structure is underlain by “uncontrolled

fill” as opposed to “engineered fill,”2 damage can potentially result even if blasting

2 According to Peterson, engineered fill refers to subgrade under a structure’s foundation that is

layered, compacted, or placed in a way so as “to avoid deformation after it was placed.” In contrast, uncontrolled fill is “fill that’s from an unknown source of an unknown characteristic and placed in an

5

is within the Bureau of Mines’s envelope. Peterson testified that the Dyer home

might be built on top of uncontrolled fill. Assuming this, Peterson stated that

“there is not 100% certainty how the [Dyers’] floor would behave” in response to

vibrations from blasting, and that settlement of uncontrolled fill could occur as a

result of blasting.

[¶10] Readings from a seismograph that Maine Drilling placed adjacent to

the Dyer residence showed that six blasts produced vibrations that “slightly”

exceeded the Bureau of Mines’s envelope. According to Peterson’s report,

seismograph readings showed that blasts in October and November 2004, late

March 2005, and early April 2005, produced vibrations in excess of those

guidelines. Seismograph readings indicate that the most severe vibration at the

Dyer home occurred on November 9, 2004.

[¶11] Peterson testified that it is common for Maine homes to have cracking

in foundations or basement floors that appear “over the course of the years,” which

could be caused by such things as vibrations, earth pressure, ground settlement,

temperature, and ground water. Peterson opined that settlement under the Dyer

home could have taken place for reasons unrelated to Maine Drilling’s blasting, but

that he would have expected such settlement to have occurred prior to blasting.

unknown way”; such fill “can be susceptible to unusual and unanticipated behavior over time for a variety of reasons.”

6

Conversely, Peterson concluded that settlement due to the blasting was possible

because: (1) the Dyers observed changes in floor settlement after blasting; (2) the

pre-blast survey and the Dyers’ observations did not indicate that the current

basement settlement conditions existed before blasting began; (3) uncontrolled fill

could consolidate and cause settlement from blasting vibrations; and (4) the most

severe vibrations from blasting occurred prior to observations that the basement

floor had settled.

[¶12] The Dyers filed a three-count complaint, subsequently amended,

alleging causes of action in strict liability and negligence. Maine Drilling filed a

motion for summary judgment as to all counts in the Dyers’ complaint. The Dyers

opposed Maine Drilling’s motion and filed a statement of additional material facts.

[¶13] The court granted Maine Drilling’s motion for a summary judgment

and awarded costs to Maine Drilling. The court found in favor of Maine Drilling

on the Dyers’ claim for strict liability, citing Reynolds v. W.H. Hinman Co., 145

Me. 343, 75 A.2d 802 (1950) and other Maine precedent in support of its ruling.

As to the Dyers’ negligence claim, the court concluded that the record provided

evidence to identify a standard or duty of care, based on standards formulated by

the Bureau of Mines, and that there remained factual disputes regarding a breach of

that standard or duty of care. The court concluded, however, that the record was

insufficient to generate a triable claim that Maine Drilling’s conduct was a cause of

7

damage to the Dyer home and that the record failed to include an expert opinion

that the blasting was a legal cause of the damage. The court also determined that

the Dyers could not rely on the doctrine of res ipsa loquitur in this case because the

record on summary judgment failed to contain evidence that the alleged damages

could not have occurred in the absence of negligence. The Dyers filed this appeal.

II. DISCUSSION

A. Standard of Review

[¶14] We review a grant of a summary judgment de novo, considering the

evidence in the light most favorable to the non-moving party. Jorgensen, 2009

ME 42, ¶ 2, 969 A.2d at 914. “We will affirm a grant of summary judgment if

the record reflects that there is no genuine issue of material fact and the movant is

entitled to a judgment as a matter of law.” Burdzel v. Sobus, 2000 ME 84, ¶ 6,

750 A.2d 573, 575.

B. Strict Liability

[¶15] Because the Dyers pleaded strict liability, and their claim was

dismissed on that count as well as on negligence counts, we address the strict

liability issue, and apply that analysis regardless of the validity of the negligence

claim. See Jensen v. S.D. Warren Co., 2009 ME 35, ¶ 35, 968 A.2d 528, 537

(addressing issues that could arise on remand depending on resolution of other

claims). We adopt today the Second Restatement’s imposition of strict liability for

8

abnormally dangerous activities,3 and remand to the court to determine if the

blasting in this case was an abnormally dangerous activity under the Restatement’s

six-factor test. See Restatement (Second) of Torts §§ 519-520 (1977).4 In doing

so, we overrule our prior opinions requiring proof of negligence in blasting cases.

1. History of Strict Liability

[¶16] Strict liability doctrine originated in the English case Rylands v.

Fletcher, (1868) 3 L.R. 330 (H.L.), where the court held that a defendant was

3 Other authorities and cases sometimes refer to these activities as “ultra-hazardous” or “extra-hazardous,” but we use the term “abnormally dangerous activities,” consistent with the Second Restatement.

4 The Second Restatement states:

§ 519. General Principle

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes

the activity abnormally dangerous. § 520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous

attributes.

Restatement (Second) of Torts §§ 519-520 (1977).

9

liable regardless of negligence when he used his land in a way that was non-natural

and likely to cause injury, and injury in fact resulted. Id. (“If a person brings, or

accumulates, on his land anything which, if it should escape, may cause damage to

his neighbour, he does so at his peril. If it does escape, and cause damage, he is

responsible, however careful he may have been.”). This Court rejected Rylands in

the 1950s, deciding that proof of negligence would be required in blasting cases.

Reynolds, 145 Me. at 362, 75 A.2d at 811.

[¶17] In Reynolds, we noted that strict liability was the historic rule, but that

the majority of states had switched to a negligence approach in abnormally

dangerous activities cases. Id. at 347-48, 75 A.2d at 804-05. Additionally, the

opinion quoted a law review article arguing against strict liability based in part on

the “difficulty of drawing the line between the danger which calls for care and the

extra hazard. There are, as yet[,] no unanimously approved rules or criteria as to

this subject.” Id. at 349, 75 A.2d at 805 (quotation marks omitted). Finally, our

Reynolds decision was supported by the conclusions that blasting is a reasonable

and lawful use of land, id. at 361, 75 A.2d at 811, and that plaintiffs would

generally be able to recover under a negligence scheme. Id. at 351, 75 A.2d at 806

(“At the present time, in an action for blasting, if the courts apply the modern law

as to negligence, a plaintiff who has a meritorious case can generally recover

without calling in aid the old rule of absolute liability.” (quotation marks omitted)).

10

2. Modern Strict Liability

[¶18] These rationales have been undermined in the last half-century.

Policy approaches have shifted nationwide, leading almost every other state to

adopt strict liability in blasting and other abnormally dangerous activity cases, and

leading Maine to apply strict liability in other contexts. Additionally, the Second

Restatement has provided a scheme of clear criteria for delineating which activities

require a strict liability approach. In light of these changes, we overturn Reynolds

and its progeny and adopt strict liability under the Restatement’s six factor test.

[¶19] Reynolds operated on the assumption that negligence liability would

allow most plaintiffs to recover in blasting cases. However, we have recognized

that blasting is inherently dangerous, Maravell v. R.J. Grondin & Sons, 2007 ME

1, ¶ 17, 914 A.2d 709, 714, and most courts have recognized that this inherent

danger cannot be eliminated by the exercise of care. The Dyers’ expert testified

that blasting may cause damage even when it is within the Bureau of Mines’s

guidelines. Consequently, although blasting is a lawful and often beneficial

activity, the costs should fall on those who benefit from the blasting, rather than on

an unfortunate neighbor. See W. Page Keeton, et al., Prosser & Keeton on Torts

ch. 13 § 78 at 556 (5th ed. 1984) (“[S]uch intentional exposure of another to great

danger, however socially desirable the activity, can generally be regarded as a

sound basis on which to allocate the risk of loss to the person or entity engaging in

11

that ultra-hazardous and abnormally dangerous activity. This seems to best

describe the result of most recent cases.”).

[¶20] The negligence approach to abnormally dangerous activities initially

taken by American courts was rooted in part in the idea that dangerous activities

were essential to industrial development, “and it was considered that the interests

of those in the vicinity of such enterprises must give way to them, and that too

great a burden must not be placed upon them.” Id. at 549. But today, that attitude

has changed, see id., and strict liability seeks to encourage both cost-spreading and

incentives for the utmost safety when engaging in dangerous activities.

Additionally, blasters are already required by the rules of the Maine Department of

Public Safety and by many town ordinances to have liability insurance covering

damages that result from blasting.5 Thus, a strict liability scheme should not

greatly increase costs for these businesses.

[¶21] At least forty-one states have adopted some form of strict liability for

blasting,6 with only two of those clearly limiting it to damage caused by debris.7

5 The rules require that “[a] certificate of public liability insurance in the amount of $500,000.00 to

cover losses, damages or injuries that may ensue to persons or property must be furnished to the Office of State Fire Marshal prior to issuance of a permit to use, store or transport explosives.” 9 C.M.R. 16 219 031-2 (2007). Many towns similarly require insurance to obtain a blasting permit, for example Portland requires the submission of proof of insurance, Portland, Me., Code § 10-18 (June 19, 2008), as well as Bangor, which requires that “[t]he blaster shall obtain and maintain general liability insurance in an amount to be approved by the City Engineer.” Bangor, Me., Code § 76-6 (April 8, 1996).

6 See Harper v. Regency Dev. Co., 399 So.2d 248, 252 (Ala. 1981); Yukon Equip., Inc. v. Fireman’s

Fund Ins. Co., 585 P.2d 1206, 1211 (Alaska 1978); Correa v. Curbey, 605 P.2d 458, 459-60 (Ariz. Ct.

12

The other New England states are among those adopting strict liability, with the

exception of New Hampshire, which has retained negligence liability for blasting

damages. See Wadleigh v. Manchester, 123 A.2d 831, 833 (N.H. 1956).

[¶22] Massachusetts was one of the first states to adopt the concept, and has

consistently applied strict liability to cases involving damage by debris from

blasting, although it applies negligence analysis to concussion or vibration damage

cases. See Coughlan v. Grande & Son, Inc., 125 N.E.2d 778, 780 (Mass. 1955).

Vermont has joined the majority of other states, including Connecticut and Rhode

App. 1979); W. Geophysical Co. v. Mason, 402 S.W.2d 657, 658 (Ark. 1966); Balding v. D.B. Stutsman, Inc., 54 Cal. Rptr. 717, 720 (Cal. Ct. App. 1966); Garden of the Gods Village, Inc. v. Hellman, 294 P.2d 597, 600 (Colo. 1956); Whitman Hotel Corp. v. Elliot & Watrous Eng’g Co., 79 A.2d 591, 595-96 (Conn. 1951); Catholic Welfare Guild, Inc. v. Brodney Corp., 208 A.2d 301-02 (Del. 1964); Morse v. Hendry Corp., 200 So.2d 816, 817 (Fla. Dist. Ct. App. 1967); Brooks v. Ready Mix Concrete Co., 96 S.E.2d 213, 215 (Ga. Ct. App. 1956); Beckstrom v. Hawaiian Dredging Co., 42 Haw. 353, 364-65 (Haw. 1958); Peet v. Dolese & Shepard Co., 190 N.E.2d 613, 618 (Ill. App. Ct. 1963); Enos Coal Mining Co. v. Schuchart, 188 N.E.2d 406, 408 (Ind. 1963); Davis v. L&W Constr. Co., 176 N.W.2d 223, 225 (Iowa 1970); Valley Stone Co. v. Binion, 422 S.W.2d 889, 890 (Ky. Ct. App. 1967); Fontenot v. Magnolia Petroleum Co., 80 So.2d 845, 849 (La. 1955); Gallagher v. H.V. Pierhomes, LLC, 957 A.2d 628, 634 (Md. Ct. Spec. App. 2008); Clark-Aiken Co. v. Cromwell-Wright Co., 323 N.E.2d 876, 885 (Mass. 1975); Jones v. Al Johnson Constr. Co., 300 N.W. 447, 449 (Minn. 1941); Cent. Exploration Co. v. Gray, 70 So.2d 33, 37 (Miss. 1954); Clay v. Mo. Highway & Transp. Comm’n, 951 S.W.2d 617, 623 (Mo. Ct. App. 1997); Longtin v. Persell, 76 P. 699, 701 (Mont. 1904); Berg v. Reaction Motors Div., 181 A.2d 487, 494 (N.J. 1962); Thigpen v. Skousen & Hise, 327 P.2d 802, 806 (N.M. 1958); Spano v. Perini Corp., 250 N.E.2d 31, 33 (N.Y. 1969); Guilford Realty & Ins. Co. v. Blythe Bros. Co., 131 S.E.2d 900, 904-05 (N.C. 1963); Walczesky v. Horvitz Co., 269 N.E.2d 844, 846 (Ohio 1971); Seismograph Serv. Corp. v. Buchanan, 316 P.2d 185, 187 (Okla. 1957); Bedell v. Goulter, 261 P.2d 842, 844 (Or. 1953); Federoff v. Harrison Constr. Co., 66 A.2d 817, 817-18 (Pa. 1949); Wells v. Knight, 80 A. 16, 18-19 (R.I. 1911); Wallace v. A.H. Guion & Co., 117 S.E.2d 359, 361 (S.C. 1960); Feinberg v. Wis. Granite Co., 224 N.W. 184, 184 (S.D. 1929); Oman Constr. Co. v. Tenn. C. Ry. Co., 370 S.W.2d 563, 575-76 (Tenn. 1963); Hood v. Laning, 415 S.W.2d 953, 955-56 (Tex. Civ. App. 1967); Madsen v. E. Jordan Irrigation Co., 125 P.2d 794, 794 (Utah 1942); Malloy v. Lane Constr. Co., 194 A.2d 398, 400 (Vt. 1963); Laughon & Johnson, Inc. v. Burch, 278 S.E.2d 856, 859 (Va. 1981); Klein v. Pyrodyne Corp., 810 P.2d 917, 920 (Wash. 1991); Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 165 S.E.2d 113, 118 (W. Va. 1968); Ziegler v. Wonn, 118 N.W.2d 706, 708 (Wis. 1963).

7 See Coughlan v. Grande & Son, Inc., 125 N.E.2d 778, 780 (Mass. 1955); Hood v. Laning, 415

S.W.2d 953, 955-56 (Tex. Civ. App. 1967).

13

Island, and applied strict liability to all blasting cases, finding that “[i]t seems clear

that the just result is to allocate the loss so that those gaining the benefit of the

activity bear the cost, if the utility of the activity is great enough to justify the

invasion of private rights.” Malloy v. Lane Constr. Corp., 194 A.2d 398, 400 (Vt.

1963).

[¶23] Not only has the weight of authority shifted nationally, but we, acting

pursuant to our common law authority, have applied forms of strict liability in

certain circumstances. For example, we have adopted the Second Restatement

approach to injuries caused by wild animals, analogizing those cases to blasting.

See Byram v. Main, 523 A.2d 1387, 1390 n.7 (Me. 1987) (“The keeping of wild

animals is categorized with such dangerous activities as blasting, pile driving,

storing inflammable liquids, and accumulating sewage.”). Owners of domestic

animals may be held strictly liable as well. See Henry v. Brown, 495 A.2d 324,

325 (Me. 1985).

[¶24] The Legislature has also been increasingly willing to apply strict

liability in certain cases, imposing liability for explosions of natural gas, 14 M.R.S.

§ 165 (2008); for defective products, 14 M.R.S. § 221 (2008); and for oil spills and

hazardous waste, 38 M.R.S. §§ 552(2), 1319-J (2008).

[¶25] The Legislature has not, however, addressed the need for strict

liability in abnormally dangerous activity cases. Maine Drilling makes the

14

argument that performance standards for blasting at quarries show that the

Legislature has addressed the issue of liability for blasting, and that it both did not

mention strict liability and declined to extend the high standard of care past quarry

operations. But this provision is in a chapter pertaining specifically to quarries,

and for the purposes of environmental protection. See 38 M.R.S. § 490-Z(14)

(2008). Establishing standards in those circumstances does not disallow strict

liability in blasting cases, especially in the construction context, which the statute

explicitly does not encompass. 38 M.R.S. § 490-X (2008). “[S]trict liability is

entirely a question of the relation of the activity to its surroundings,” Keeton,

Prosser & Keeton on Torts § 78 at 554, and because of this quarries require a

wholly different analysis than blasting in other areas.

[¶26] The concurrence points to 17 M.R.S. § 2791 (2008), which imposes

strict liability on all blasters who fail to give warning, or who blast after sunset.

Section 2791 does not encompass the situation we face today. This statute, passed

in 1852, deals with blasting “lime rock or other rocks,” requiring blasters to give

seasonable notice so that those approaching stay a safe distance from the

explosion. See id. There has been no issue in this case involving notice of the

blasting. In fact, during many of the blasts, Vera Dyer was away from her

residence. We only reach an issue of statutory surplusage if language renders a

statute meaningless. See Stromberg-Carlson Corp. v. State Tax Assessor, 2001

15

ME 11, ¶ 9, 765 A.2d 566, 569. This statute does not apply to our situation and

therefore our interpretation does not render it meaningless.

[¶27] Under these circumstances, the application of strict liability or

negligence to blasting “is a creation of our common law. . . . [I]ts applicability in

Maine is controlled entirely by the precedents of this Court. It is therefore

appropriate for this Court to continue to determine the scope of [the doctrine].”

See Picher v. Roman Catholic Bishop of Portland, 2009 ME 67, ¶ 27, 974 A.2d

286, 295 (discussing doctrine of charitable immunity) (quotation marks omitted).

3. Stare Decisis

[¶28] Although we afford great weight to the value of precedent under the

doctrine of stare decisis, “[p]recedents, once so established, . . . do not become

totally immune from change for all time. Were that to be so . . . the law would be

locked rigidly to the decisions of the past, rendered powerless to adapt to the needs

and values of the present.” Myrick v. James, 444 A.2d 987, 998 (Me. 1982).

Where, as here, “the basis on which [a] rule was originally founded has . . . fallen

into jurisprudential disrepute and is disapproved in the better-considered recent

cases and in the authoritative scholarly writings,” we must allow that rule to

change. See id. at 999; see also Adams v. Buffalo Forge Co., 443 A.2d 932, 935

(Me. 1982) (“While we recognize the unquestioned need for the uniformity and

certainty the doctrine provides, we have also previously recognized the dangers of

16

a blind application of the doctrine merely to enshrine forever earlier decisions of

this court.”).

4. The Second Restatement

[¶29] We adopt the Second Restatement’s approach to strict liability,

imposing liability on defendants conducting an abnormally dangerous activity

without requiring proof of negligence, although causation must still be proved. We

believe that this approach strikes the right balance of policy interests by

considering on a case-by-case basis which activities are encompassed by the rule,

and by taking account of the social desirability of the activity at issue, see

Restatement (Second) of Torts § 520(f) (1977), in contrast to the First Restatement

approach, see Restatement (First) of Torts § 520 (1939).

[¶30] Most jurisdictions have not adopted either the First or Second

Restatement, and instead impose strict liability in blasting cases under a blanket

rule that a blaster is always liable when causation is established. See, e.g.,

Whitman Hotel Corp. v. Elliott & Watrous Eng’g Co., 79 A.2d 591, 595 (Conn.

1951). However, a number of courts that have re-examined the question since the

adoption of the Second Restatement have chosen to apply the Restatement

approach to abnormally dangerous activities. See, e.g., Harper v. Regency Dev.

Co., 399 So.2d 248, 252-53 (Ala. 1981); Yommer v. McKenzie, 257 A.2d 138,

140-42 (Md. 1969) (applying draft Second Restatement); Clark-Aiken Co. v.

17

Cromwell-Wright Co., 323 N.E.2d 876, 886-877 (Mass. 1975) (applying draft

Second Restatement); Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295, 297

(Nev. 1993); Woodson v. Rowland, 407 S.E.2d 222, 234 (N.C. 1991); Selwyn v.

Ward, 879 A.2d 882, 889 (R.I. 2005); Klein v. Pyrodyne Corp., 810 P.2d 917, 920

(Wash. 1991); Crum v. Equity Inns, Inc., 2009 W. Va. LEXIS 69, at *33 (W. Va.

June 22, 2009). Massachusetts is one such jurisdiction, adopting the Second

Restatement because it “advocates considering the activity in light of surrounding

circumstances on the facts of each case. This, in essence, shifts consideration from

the nature of the activity to the nature and extent of the risk.” Clark-Aiken Co.,

323 N.E.2d at 887.

[¶31] A person who creates a substantial risk of severe harm to others while

acting for his own gain should bear the costs of that activity. Most of the courts of

the nation have recognized this policy, and we now do as well. For these reasons

we adopt strict liability and remand for a determination whether the activity in this

case subjected Maine Drilling to liability under the Second Restatement approach.

C. Causation

[¶32] Under a strict liability analysis, proof of a causal relationship between

the blasting and the property damage is still required. See Restatement (Second) of

Torts § 519(1) (1977). The Dyers therefore must demonstrate an issue of material

fact as to causation to maintain either their strict liability or negligence claims.

18

The question of causation is generally one of fact to be determined by the

fact-finder, and “a judgment as a matter of law is improper if any reasonable view

of the evidence could sustain a finding of proximate cause.” Houde v. Millett,

2001 ME 183, ¶ 11, 787 A.2d 757, 759.

[¶33] Viewing the evidence in a light most favorable to the Dyers, and

drawing all reasonable inferences in their favor, the Dyers produced sufficient

evidence on the issue of causation to survive Maine Drilling’s motion for summary

judgment. First, the record has significant evidence concerning the condition of

the premises before blasting began. The Dyer family was exceedingly familiar

with the condition of the home prior to blasting, having lived in it for over fifty

years. Immediately preceding blasting activities, Maine Drilling (or its agent)

completed a pre-blasting survey of the condition of the home and recorded its

findings. Richard Dyer likewise inspected and videotaped the pre-blast condition

of the home.

[¶34] The record also contains evidence that six blasts exceeded the Bureau

of Mines’s threshold, and that Vera felt the “whole house shake” from at least two

blasts, a sensation she did not feel from the passing of heavy equipment in the area.

After these blasts occurred, Paul and Richard observed in early 2005 significant

changes to the condition of the home when compared to its condition immediately

19

before blasting began. Upon returning from Florida, Vera corroborated the

changes observed by her sons.

[¶35] A fact-finder could infer that these significant changes, observed over

a short period of time in a home over seventy-years-old, were not likely to have

been caused by normal settling. In Cratty, we held that expert testimony is not

necessary to prove negligence, including causation, in a blasting damages case.

Cratty v. Samuel Aceto & Co., 151 Me. 126, 131, 116 A.2d 623, 626 (1955).

[¶36] In addition to their personal observations, the Dyers offered evidence

through their expert that, given all the circumstances in the case, it was possible

that blasting caused settlement and the damage observed in the home and garage.

Additionally, the expert opined that although forces other than blasting could have

caused the damages, such damage typically occurs over a course of years, as

opposed to a period of months.

[¶37] A fact-finder could reasonably find that the blasting was the

proximate cause of damage to the Dyer home, because of: (1) the condition of the

home observed before and after blasting commenced; (2) the temporal relationship

between when the strongest blasting vibrations occurred and when damage was

first observed; (3) evidence that the damage could have been caused by blasting;

and (4) the reasonable inference that such damage was unlikely to be caused by

other forces that typically cause cracking over longer periods of time.

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Accordingly, the Dyers have provided sufficient evidence to create a genuine issue

of material fact, precluding a summary judgment in Maine Drilling’s favor on the

causation issue incident to both the strict liability and the negligence claims.

D. Res Ipsa Loquitur

[¶38] The Dyers argue that the doctrine of res ipsa loquitur applies to

establish negligence as a matter of law in this case. Although the court may not

need to reach the Dyers’ negligence claims given our holdings regarding strict

liability and causation, we hold that the doctrine does not apply to blasting cases.

[¶39] Res ipsa applies where “the damage is such that it would not

ordinarily have occurred if the user of the dangerous instrumentality had the

required knowledge, and proper care had been exercised in its use.” Cratty, 151

Me. at 133, 116 A.2d at 627. Although Cratty applied the doctrine in a blasting

case, we have since recognized that blasting is “inherently dangerous.” See

Maravell, 2007 ME 1, ¶ 17, 914 A.2d at 714. Because of this, blasting is not an

activity where a fact-finder can “infer negligence and causation from the mere

occurrence of an event.” See Poulin v. Aquaboggan Waterslide, 567 A.2d 925,

926 (Me. 1989).

[¶40] According to the Dyers’ expert, even blasting that is within the

guidelines set by the U.S. Bureau of Mines can cause damage, particularly to

structures underlain by uncontrolled fill. This is like other cases in which we have

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declined to apply the res ipsa doctrine because the instrumentality causing the

harm could have been set off by a number of factors that do not involve

negligence. See, e.g., Wellington Assocs., Inc. v. Capital Fire Prot. Co., 594 A.2d

1089, 1092 (Me. 1991) (bursting pipe); Parker v. Harriman, 516 A.2d 549, 551

(Me. 1986) (collapse of vehicle jack); Pratt v. Freese’s, Inc., 438 A.2d 901, 904

(Me. 1981) (elevator door malfunction). Because even careful blasting may cause

dangerous vibrations, the Dyers may not rely on the doctrine of res ipsa loquitur in

this case.

The entry is:

Judgment vacated. Remanded for further proceedings consistent with this opinion.

ALEXANDER, J., with whom SAUFLEY, C.J., joins, concurring in part and dissenting in part.

[¶41] I concur in the result of the Court’s carefully written and

well-researched opinion vacating the trial court’s judgment. I do not join the

Court’s opinion because, in my view, the Dyers may recover if they can prove

causation under existing Maine law. Therefore, we should have no occasion to

ignore the doctrine of stare decisis and cast aside existing law to (1) create a

common law rule of strict liability when blasting damages are alleged, and

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(2) overrule prevailing precedent that already allows recovery of damages if

negligence and causation can be demonstrated in a blasting case. I respectfully

dissent from the Court’s expansion of the current, limited statutory rule of strict

liability for blasting cases stated in 17 M.R.S. § 2791 (2009).8

[¶42] As the Court’s opinion states, the record on summary judgment must

be reviewed in the light most favorable to the non-prevailing party, here the Dyers.

See Jorgensen v. Dep’t of Transp., 2009 ME 42, ¶ 2, 969 A.2d 912, 914. The

Court’s opinion accurately states the facts of this case, viewed in that light. Thus

the facts are not repeated here.

[¶43] We have a prior opinion, Cratty v. Samuel Aceto & Co., 151 Me. 126,

116 A.2d 623 (1955), that is virtually on all fours with the facts and issues in this

case. In Cratty, as here, damage to a home was observed following blasting

activity. In Cratty, we declined the plaintiff’s invitation to adopt a rule of strict

liability for blasting cases. However, we allowed the plaintiff to proceed on

negligence and res ipsa loquitur theories of recovery. 151 Me. at 130-35, 116 A.2d

at 626-28.

8 Title 17 M.R.S. § 2791 (2008) states that when a person engaged in blasting fails to “give

seasonable notice thereof, so that all persons or teams approaching shall have time to retire to a safe distance” or detonates an explosion after sunset, the person violating the notice mandate or the after sunset detonation prohibition, “is liable for all damages caused by any explosion.” Neither notice nor after sunset explosions are at issue in this case.

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[¶44] There are minor differences between Cratty and this case. In Cratty,

the blasting occurred as close as 200 feet from the home. Here it occurred as close

as 100 feet from the home. In Cratty, there was no evidence of any standards to

measure risk. Here there is evidence of the Bureau of Mines risk standards and

evidence of violation of those standards in at least six blasts. Thus, under our

existing law, the instant case may be more favorable to the plaintiffs than the case

stated in Cratty, and we should permit the Dyers to proceed with their claim in

accordance with the law that has governed such cases since Cratty.

A. Stare Decisis

[¶45] Stare decisis, the practice of appellate courts respecting their own past

precedent in interpreting the law, and applying that precedent in the present to

resolve similar questions of law, is a staple of appellate decision-making. “Stare

decisis embodies the important social policy of continuity in the law by providing

for consistency and uniformity of decisions.” Bourgeois v. Great N. Nekoosa

Corp., 1999 ME 10, ¶ 5, 722 A.2d 369, 371.

[¶46] Stare decisis helps to assure that an appellate judge’s view that a prior

decision may have been wrongly decided is, standing alone, insufficient to justify

overruling the decision. See Alexandre v. State, 2007 ME 106, ¶ 35, 927 A.2d

1155, 1164. Appellate courts proceed with great care before overruling a prior

decision, and do so only after careful analysis and based on a compelling reason.

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Id. “We do not disturb a settled point of law unless the prevailing precedent lacks

vitality and the capacity to serve the interests of justice.” Bourgeois, ¶ 5, 722 A.2d

at 371, citing Myrick v. James, 444 A.2d 987, 1000 (Me. 1982) (quotation marks

omitted).

[¶47] As discussed below, our prevailing precedent is viable and serves the

interests of justice, providing grounds upon which the Dyers may recover if they

can prove their claim. There is no need to disturb settled points of law to extend

the doctrine of strict liability to blasting activities.

B. Negligence

[¶48] We have held that a prima facie case of negligence to avoid summary

judgment requires that a plaintiff must establish four elements: (1) a duty or

standard of care; (2) breach of that duty or standard of care; (3) an injury to the

plaintiff caused by that breach of duty or standard of care; and (4) damages.

Mastriano v. Blyer, 2001 ME 134, ¶ 11, 779 A.2d 951, 954.

[¶49] Here the trial court has already determined that there is sufficient

evidence to avoid summary judgment on the standard of care and breach of the

standard of care issues. Thus, the only dispute for resolution on this appeal is

whether there remain disputed facts relating to the issue of causation. The Court

holds, and I agree, that the Dyers have produced sufficient evidence to survive

Maine Drilling’s motion for summary judgment on the causation issue incident to

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their negligence claim. See Cratty, 151 Me. at 131-35, 116 A.2d at 626-28. Thus,

based on the Court’s reasoning, and with the trial court having found fact disputes

regarding the standard of care and breach of the standard of care, the Dyers’

negligence claim may proceed to trial.

[¶50] Further, it is important to remember that Cratty has already

established that expert testimony is not necessary to prove negligence, including

causation, in a blasting damages case. 151 Me. at 131, 116 A.2d at 627 (“It is

nevertheless rare that damage is caused to adjoining property, if the blaster uses

reasonable care that the law requires that he should use. This is common

knowledge to every school boy and to every adult citizen.”).9

[¶51] Given the conclusion that there is sufficient record evidence as to

each element of negligence to withstand Maine Drilling’s motion for summary

judgment, neither we nor the trial court, on remand, need to consider application of

9 See generally M.R. Evid. 702; Maravell v. R.J. Grondin & Sons, 2007 ME 1, ¶ 11, 914 A.2d 709,

713 (stating that expert testimony may not be necessary “where the negligence and harmful results are sufficiently obvious as to lie within common knowledge”); see also Albison v. Robbins & White, Inc., 151 Me. 114, 124-25, 116 A.2d 608, 613 (1955).

Courts in other jurisdictions have concluded that causation may be shown, or that the plaintiff may

survive a summary judgment motion, based on the observations of a layperson. See, e.g., Birmingham Coal & Coke Co. v. Johnson, 10 So. 3d 993, 997-98 (Ala. 2008) (affirming award of damages in blasting case where plaintiffs presented evidence of feeling vibrations in the house and damage after blasting, but did not present expert testimony on causation); King v. New Haven Trap Rock Co., 152 A.2d 503, 504 (Conn. 1959) (holding that expert testimony was not required to prove causation and damage in that blasting concussion case); McCuller v. Drummond Co, 714 So. 2d 298, 299 (Ala. Civ. App. 1997) (holding that the defendant was not entitled to a summary judgment when the plaintiff provided evidence concerning causation that the home was damaged after blasting in a manner consistent with blasting damage, but did not provide testimony as to causation from a blasting expert).

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the doctrine of res ipsa loquitur. See Sheltra v. Rochefort, 667 A.2d 868, 870 (Me.

1995); Poulin v. Aquaboggan Waterslide, 567 A.2d 925, 926 (Me. 1989).10

C. Strict Liability

[¶52] In Cratty, confirming our prior holding in Reynolds v. W.H. Hinman

Co., 145 Me. 343, 361-62, 75 A.2d 802, 811 (1950), we held that there is no

common law strict liability for damages observed after blasting and that to recover

damages, negligence on the part of the blaster must be alleged and proved. 151

Me. at 130, 116 A.2d at 626. We should decline to overrule Cratty and adopt a

rule of strict liability in blasting cases at this time. Such a change in the law is not

required to permit the Dyers’ claim to be heard.

[¶53] The Legislature has already enacted a law establishing strict liability

in blasting cases in certain, very limited, circumstances. That law, 17 M.R.S.

§ 2791, states that when a person engaged in blasting fails to “give seasonable

notice thereof, so that all persons or teams approaching shall have time to retire to

a safe distance,” or detonates an explosion after sunset, the person violating the

10 Res ipsa loquitur may apply only when a plaintiff proves by a preponderance of the evidence that:

(1) an injury or damage to the plaintiff was caused by an unexplained event; (2) at the time of the damage, the instrument causing the damage was under the defendant’s control or management; (3) in the ordinary course of events, the damage would not have occurred in the absence of negligence; and (4) other potential causes of the damage, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence. See Sheltra v. Rochefort, 667 A.2d 868, 870 (Me. 1995); Poulin v. Aquaboggan Waterslide, 567 A.2d 925, 926 (Me. 1989). Here, the Dyers allege that blasting activity, done in violation of Bureau of Mines standards, is the cause of their damages. With causation alleged to be based on an explained event, and a standard of care identified and alleged to have been violated, there is no occasion to consider a res ipsa loquitur theory of recovery.

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notice mandate or the after sunset detonation prohibition “is liable for all damages

caused by any explosion.” The Court’s action today, expanding strict liability

from this limited area to all blasting activity, renders section 2791 unnecessary

statutory surplusage. Our rules of statutory construction direct that, when possible,

we should not construe statutes—or the common law—to render statutory

language surplusage or meaningless. Stromberg-Carlson Corp. v. State Tax

Assessor, 2001 ME 11, ¶ 9, 765 A.2d 566, 569; Finks v. Me. State Highway

Comm’n, 328 A.2d 791, 799. We should leave it to the Legislature, as a matter of

policy, to determine whether or not to adopt an expanded rule of strict liability for

all cases of damage caused by blasting.

[¶54] With the guidance provided by Cratty on blasting claims and our

more recent cases on negligence and causation issues, we should leave resolution

of this claim to the trial court, based on our existing body of law. We should not

overrule Cratty and create a new common law rule of strict liability, avoiding any

need to demonstrate negligence in any blasting case.

SAUFLEY, C.J., concurring in part and dissenting in part.

[¶55] I join Justice Alexander’s dissent. Although I concur in the Court’s

decision affirming the judgment on the issue of res ipsa loquitur and vacating the

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judgment on the issue of negligence, I write additionally in dissent regarding the

Court’s adoption of a strict liability cause of action in this case.

[¶56] Strict liability allows the imposition of economic damages without

proof of wrongdoing. Reynolds v. W.H. Hinman Co., 145 Me. 343, 347-48,

75 A.2d 802, 804 (1950). In the 1950s, we held that strict liability does not apply

in blasting cases. See id. at 361-62, 75 A.2d at 811; Cratty v. Samuel Aceto & Co.,

151 Me. 126, 130, 116 A.2d 623, 626 (1955). Thus, for more than fifty years, it

has been the settled expectation of businesses and insurers that blasters must act

reasonably to protect local property, and that they will be held responsible if they

are negligent. Today, by eliminating a plaintiff’s burden of proving negligence,

the Court expands the financial responsibility of developers who must engage in

blasting. The expansion of fiscal responsibility to cases where there has been no

wrongdoing changes a long-established financial business equation.

[¶57] Unfortunately, the Court exercises its authority to expand liability

without any factual demonstration of the need for such change or the potential

effect on Maine’s economy. Without a record containing this important

information, the Court risks increasing the costs of doing business (typically

insurance costs) and decreasing employment opportunities in Maine.

[¶58] As a matter of jurisprudential policy, this is the wrong approach at the

wrong time.

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[¶59] Accordingly, I join Justice Alexander’s dissent on the issue of strict

liability.

Attorneys for Vera E. Dyer, Paul Dyer and Robert Dyer: Jeffrey T. Edwards, Esq. (orally) James C. Bush, Esq. Preti, Flaherty, Beliveau & Pachios, LLP One City Center PO Box 9546 Portland, Maine 04112-9546 Attorneys for Maine Drilling & Blasting, Inc.: Frederick C. Moore, Esq. (orally) Jessica Adler Coro, Esq. Law Offices of Frederick C. Moore 511 Congress Street, Fourth Floor Portland, Maine 04101 Waldo County Superior Court docket number CV-2007-11 FOR CLERK REFERENCE ONLY